31 TAC §675.1
The Texas Low-Level Radioactive Waste Disposal Compact
Commission ("Commission") proposes new §675.1 to be captioned
"1995 - 2045 Waste Volume Estimate" and to be contained in a new Chapter
675, Part 21, Title 31, Texas Administrative Code.
BACKGROUND AND SUMMARY OF THE FACTUAL BASIS FOR THE PROPOSED RULE
The Commission was created by an Act of the Texas Legislature in
1993. The language of that Act, as subsequently amended, now appears
in Chapter 403, Texas Health and Safety Code. The text of the Compact
is set out under §403.006, Texas Health and Safety Code. Originally,
the State of Texas entered into a Low-Level Waste Disposal Compact
with the States of Maine and Vermont. After ratification, the State
of Maine withdrew from the Compact leaving Texas and Vermont as the
current member states.
In November, 2008, Texas Governor Rick Perry named the six Texas
members of the Commission. The State of Vermont also named two commissioners
with the last commissioner being named in March, 2009.
Under the provisions of Section 3.04(11) of the Compact, there
is an instruction to the Commission that:
"By no later than 180 days after all members of the commission
are appointed under Section 3.01 of this article, establish by rule
the total volume of low-level radioactive waste that the host state
will dispose of in the compact facility in the years 1995 - 2045,
including decommissioning waste. The shipments of low-level radioactive
waste from all non-host party states shall not exceed 20 percent of
the volume estimated to be disposed of by the host state during the
50-year period. When averaged over such 50-year period, the total
of all shipments from non-host party states shall not exceed 20,000
cubic feet a year. The commission shall coordinate the volumes, timing,
and frequency of shipments from generators in the non-host party states
in order to assure that over the life of this agreement shipments
from the non-host party states do not exceed 20 percent of the volume
projected by the commission under this paragraph."
It should be noted that the sole requirement in the provision is
one of estimating volume. Nothing is said in the law and in the Compact
about the character or classification of the waste, nor of the number
of curies associated with the waste, nor with the half-life of the
waste, nor of the form of the waste. The sole direction to the Commission
is that it adopt a rule estimating the volumes of radioactive waste
that the host state will dispose of in the compact facility in the
years 1995 - 2045.
In response to this requirement of statute, the Commission scheduled
and then held a stakeholders' meeting on April 14, 2009 in Austin,
Texas. At that meeting there was discussion with respect to two studies
combining volume of radioactive waste disposal that had been prepared
by the State of Texas. The first of those studies was done in 1994
and the second in 2000. Generators stated that disposal volume estimates
were dependent on disposal costs and disposal alternatives. Additionally,
there were remarks at the stakeholder meeting about how technologies
had changed since some early estimates of volume had been made. There
was some discussion at the stakeholder meeting about the potential
for expansion of nuclear generating capacity in Texas between 2009
and 2045 as well as discussion about whether the Vermont Yankee facility
license would be extended and when decommissioning of that facility
might take place. Finally, no one present objected to the Commission
issuing a rule that contains a higher estimate of disposal volume
given the uncertainties in making the estimate of a quantity of waste
sent to a site for disposal. (Those present did say that there was
somewhat more certainty in making estimates of generated waste quantities
than there was in making estimates of disposed waste quantities.)
An analysis of the wording of the entire waste volume estimate
provision in the Compact compels a conclusion that there are really
two parts to the estimate. One is of the requirement that there be
an estimate ". . . for the total volume of low-level radioactive waste
that the host state will dispose of in the compact facility in the
years 1995 - 2045. . . .". The other is that "[t]he shipments of low-level
radioactive waste from all non-host party states shall not exceed
20 percent of the volume estimated to be disposed of by the host state
during the 50-year period." There is a further limitation on the last
part of the volume estimate that ". . . over the life of this agreement
shipments from the non-host party states do not exceed 20 percent
of the volume projected by the commission under this paragraph." Finally,
there is an ultimate "cap" on the quantity of waste from non-host
party states. That cap is that "[w]hen averaged over such 50-year-period,
the total of all shipments from non-host party states shall not exceed
20,000 cubic feet a year." In other words, as long as Vermont is the
only non-host party state, its total volume sent to the site for disposal
cannot exceed 1,000,000 cubic feet no matter how large the volume
of Texas waste that is going into the site.
Thus, in practical terms, given that there are now only two states
in the Compact, the requirement is to project a waste disposal volume
for Texas and, from that, get an estimate of the total waste disposal
volume for the site in Texas--the host state--and then determine whether
twenty percent of that volume was sufficient for Vermont's projected
needs. At the same time Vermont's projected volumes cannot be more
that 1,000,000 cubic feet.
When asked, Vermont indicated that its needs would probably meet
or exceed 1,000,000 cubic feet of capacity based on observed experiences
during decommissioning of the Maine Yankee generating facility. There
are similar decommissioning requirements in Vermont that indicate
the volume could be similar to that generated in the Maine decommissioning
process. The question then became whether the Texas disposal volume
would be sufficient to allow Vermont to have 1,000,000 cubic feet
of disposal capacity.
Given the previous estimates made by Texas of volumes; given that
there are four existing generating units in Texas that are similar
in size to those decommissioned in Maine and that the licenses of
those facilities may expire during the 50-year estimate period; given
that decommissioning waste volumes resulting form the closure of the
Maine Yankee facility were approximately 1,000,000 cubic feet and
there are radioactive wastes being generated in Texas that will require
disposal in addition to the decommissioning wastes; given that there
are plans for the addition of new generating units in Texas during
the 50-year estimate period; given that the generators state that
there is a relationship between waste generation and KW size of generating
plants and that additions of nuclear generating capacity in Texas
will increase the need for yearly disposal capacity; given that no
one present at the stakeholder meeting objected to an estimate of
waste disposal volume that may be in excess of actual disposal volume
during the estimate period, and given the uncertainties in attempting
to finely estimate the quantity of waste that will be tendered to
any disposal site in Texas during the period, there is no need to
estimate the Texas radioactive waste disposal capacity in Texas at
less than a total of 5,000,000 cubic feet.
There may be a question of whether an estimate for Texas of 5,000,000
cubic feet of disposal capacity is sufficient. For the initial estimate
being done by the Commission even before a site to take the waste
is established and operating, there is simply no information on which
to judge the actual disposal annual volume, particularly when the
costs of disposal are unknown. As the stakeholders stated, the cost
of disposal does impact the volume of waste being sent to any site
for disposal.
There is nothing in the Compact or in the statute creating the
Commission that prevents the Commission from revisiting the question
of the volume of radioactive waste to be disposed of when more information
becomes known and thence making appropriate amendments to its affected
rule or rules.
The action being taken by the Commission to fulfill its duty and
establish by rule an estimated quantity of waste that will be disposed
of by the host state and by the non-host party state does not speak
to the question of whether the site in Texas has capacity or is licensed
to accept for disposal the quantity of waste being estimated by the
Commission. Whether the disposal facility is able to accommodate the
volume or is granted a license for a greater volume than established
for Compact party states is a matter between the disposal site's licensee
and the licensing agency. The Compact Commission does not have the
authority or power to grant any license to any disposal site. The
Compact Commission anticipates that there will be no relationship
between the permitted capacity of any disposal site and the Compact
Commission's estimate of the volume of Texas waste to be disposed
of at the site because it is likely that any such site will be licensed
for its capacity during its life as a result of business decisions
of the applicant and the length of terms of the required licenses
and permits as those matters may be reflected by conditions existing
at particular times during the 50-year planning period for this estimate.
SECTION BY SECTION DISCUSSION
The proposed new chapter contains only one section that has two
parts. The first part (subsection (a) of §675.1) is an estimate
of the total quantity of waste generated in Texas that is estimated
to be disposed of in the Texas site during the period 1995 through
2045. The second part (subsection (b) of §675.1) recites the
statutory requirement that the Commission coordinate the shipments
from generators in the non-host party state (Vermont) in order to
assure that the shipments do not exceed 20% (1,000,000 cubic feet)
of the volume projected for Texas by the Commission.
The proposed rule is required by the Texas Low-Level Radioactive
Waste Compact as the Compact is compiled at §403.06, Texas Health
and Safety Code.
As noted, the proposed rule does not affect the capacity of any
disposal site in the host state because the Compact Commission does
not issue licenses for disposal. Therefore, the capacity of the licensed
site can be more or less than the capacities estimated in this rule.
Because of the need for Vermont to have at least 1,000,000 cubic
feet of capacity in the Texas site, and because the need for Texas
generators is currently estimated to be at least 5,000,000 cubic feet,
and because of the uncertainties associated with making fine estimates
of the anticipated capacity need, the Compact Commission's estimate
is a total waste disposed quantity from the party states of Texas
and Vermont of 6,000,000 cubic feet, of which 5,000,000 would be available
to generators in Texas and 1,000,000 available to generators in Vermont.
FISCAL NOTE: COSTS TO STATE AND LOCAL GOVERNMENT
Mr. Bob Wilson, Chair of the Committee of the Commission charged
with developing this rule, has determined that there will be no fiscal
implications to state or local governments as a result of the establishment,
administration or enforcement of the proposed rule.
PUBLIC BENEFITS; SMALL AND MICRO BUSINESS COSTS
Mr. Wilson has determined that for each of the first five years
the proposed rule is in effect, the public benefit anticipated from
the adoption of the proposed rule will be compliance with state and
federal law, clear and concise rules for affected entities, and protection
of the public health and environment. There will be no effect on small
or micro businesses. There are no anticipated costs to individuals
for compliance with this rule. There will be costs associated with
the actual disposal of waste when such operations begin. However,
actual disposal costs to waste generators are not impacted by the
estimate of disposed radioactive waste volume in the host state's
site by virtue of the quantity estimated by this rule. In any event,
the Commission is mandated by statute to adopt a rule estimating the
volume of low-level radioactive waste to be disposed of by the host
state (Texas).
TAKINGS IMPACT ASSESSMENT
The Commission has determined that this proposal does not restrict
or limit an owner's right to his or her property that would otherwise
exist in the absence of government action and, therefore, does not
constitute a taking under §2007.43, Texas Government Code.
REGULATORY ANALYSIS
The Commission has determined that this proposal is not a "major
environmental rule" as defined by §2001.0225, Texas Government
Code. "Major environmental rule" is defined to mean a rule the specific
intent of which is to protect the environment or reduce risk to human
health from environmental exposure and that may adversely affect,
in a material way, the economy, a sector of the economy, productivity,
competition, jobs, the environment or the public health and safety
of the state or a sector of the state.
LOCAL EMPLOYMENT IMPACT STATEMENT
The Commission has reviewed this proposed rulemaking and determined
that a local employment impact statement is not required because the
proposed rules do not adversely affect a local economy in a material
way for the years that the proposed rules are in effect.
PUBLIC COMMENT
Written comments on this proposed rule may be submitted to Robert
Wilson, 711 West 7th Street, Austin, Texas 78701, or faxed to (512)
225-5565. Additionally, comments may be submitted via e-mail to bwilson@jacksonsjoberg.com.
The comment period closes 30 days from day this proposed rule is published
in the Texas Register. Copies of the
proposed rulemaking can be obtained from Robert Wilson. For further
information, please contact the Commission in care of Robert Wilson,
711 West 7th Street, Austin, Texas 78701, or via FAX, telephone or
e-mail at the locations set out in this paragraph.
STATUTORY AUTHORITY
The rule is being proposed under authority of Section 3.04(11)
of the Texas Low-Level Radioactive Waste Compact as set out in §403.006,
Texas Health and Safety Code.
No other statute is affected by the proposed rule.
§675.1.1995 - 2045 Waste Disposal Volume Estimate.
(a) The Commission estimates that Texas will dispose
of Five Million (5,000,000) Cubic Feet of Low-Level Radioactive Waste
at a Compact disposal site to be established in Texas during the period
from 1995 - 2045.
(b) The Commission shall coordinate the volumes, timing,
and frequency of shipments from Vermont in order to assure that shipments
from Vermont during the period from 1995 - 2045 do not exceed One
Million (1,000,000) cubic feet.
This agency hereby certifies that the proposal has
been reviewed by legal counsel and found to be within the agency's
legal authority to adopt.
Filed with the Office of the Secretary of State on June 8, 2009.
TRD-200902291
Robert Wilson
Commission Member
Texas Low-Level Radioactive Waste Disposal Compact Commission
Earliest possible date of adoption: July 26, 2009
For further information, please call: (512) 225-5595